Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints--or trumps--on even official acts that are sound as a matter of first-order policy reflect deeper or longer-term values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are nevertheless unconstitutional to impose those constraints on themselves is psychologically and politically unrealistic. Judicial interpretive supremacy can be justified, therefore, not only by the positive virtues of authoritative settlement, but also by the negative virtues of precluding officials from enforcing and interpreting constitutional constraints on themselves.
Many bad policies are constitutionally permissible. And many good policies are constitutionally impermissible. The former category is obvious, and few would doubt the constitutionality of, for example, lowering the speed limit on interstate highways to forty-five miles per hour, or abolishing the National Park Service. But the existence of the latter category is often less salient, and it is easy--too easy--to associate unconstitutionality with outcomes that are also defective on moral or policy grounds. State-enforced de jure segregation of the public schools is unconstitutional, (1) but, the Constitution aside, it is also immoral and bad policy. So too with confessions extracted by physical coercion, (2) regulations enacted with the express purpose of disabling a particular religion, (3) and much else.
Although many actions of government and its officials are indeed both unconstitutional and unsound on moral or policy grounds, on closer examination we discover many other actions, sound as a matter of morality and policy, that are nevertheless unconstitutional. Or, to put it another way, a careful look at the full breadth of constitutional decisions reveals that the realm of justified unconstitutionality is occupied not only by the immoral and the unwise, but also by actions that are--but for their unconstitutionality--largely justifiable on both moral and policy grounds. The history of American constitutional law is consequently replete not only with bad policies struck down in the name of the Constitution, but also with good policies adopted by well-intentioned policymakers and politicians that have suffered the same fate, and properly so. (4)
Once we recognize that the Constitution serves not only to keep bad governments and bad governors from doing bad things, but also attempts to keep, in the service of deeper or longer-term values, good governments and good governors from doing good things, (5) some of the traditional debate about the allocation of constitutional interpretive authority is seen in a different light. Insofar as constitutional law imposes second-order (6) or side constraints (7) on first-order wise policies, we can appreciate that expecting politicians, policymakers, and their constituents to set aside their own sound policy preferences in the service of less obvious, less immediate, and possibly less congenial goals is, although not impossible, highly unlikely, for reasons that are both political and psychological. Judicial interpretive supremacy emerges, therefore, as a potentially justifiable approach not because of some inherent superiority of the courts, and not (only) because the courts may be well-situated to perform a valuable settlement function in the face of moral, political, legal, and constitutional disagreement, (8) but also because the alternatives to judicial interpretive supremacy may impose upon the political branches of government tasks they cannot reasonably be expected to perform. In what follows I hope to explain and support the conclusions I have thus far done no more than announce.
THE ANNOYING CONSTITUTION
Some decades ago, Ronald Dworkin famously described rights as "trumps." (9) In choosing this characterization, Dworkin sought to describe, more or less accurately in my view, a world in which most governmental decisions were made on policy grounds. (10) Some of these decisions might involve a systematic cost-benefit analysis, (11) but most policy decisions emerge from a less formal assessment of which policy will most increase the aggregate welfare either of the population as a whole or of some particular constituency. For Dworkin, the basis for many of these decisions is a utilitarian calculation aimed at identifying the policies that will produce the greatest net welfare (or, for some utilitarians, pleasure or happiness). (12) We can broaden this claim to understand it as maintaining that the normal policy decision is a consequentialist one seeking to maximize good consequences under some conception of which kinds of good (or bad) consequences are to count in the consequentialist calculus. (13)
Dworkin was not especially concerned with the subtleties of consequentialist or utilitarian policy analysis. (14) Instead, he stressed the idea that rights serve as a check--or trump--on even genuinely welfare- or utility-maximizing policies. (15) With respect to many applications, the idea is fundamentally sound. Even if suppressing a minority religion, for example, would make the majority happier or richer, it would still be the wrong thing to do precisely because individual freedom of religion will trump even genuinely welfare-maximizing policies. Freedom of religion as an individual right is thus an instance, under Dworkin's conception of rights as trumps, of something that cannot be withheld even if depriving some people of that right will make most people, in the aggregate, happier or in some other way better off. (16) So too, he argued, with rights to freedom of speech, with the rights of criminal defendants, and--for him, most importantly--with rights to equality. (17) It is simply wrong, he insisted, for a majority to make things worse for a racial or ethnic minority even if doing so would make the majority better off. (18)
Dworkin's idea of rights as trumps uses different language to label what the philosopher Robert Nozick had earlier described as "side constraints." (19) The idea is similar. Side constraints limit, from an external or outside perspective, what can be pursued internally by application of some form of consequentialism. (20) Side constraints intrude themselves, making impermissible actions or policies that might be justifiable on utilitarian or other consequentalist grounds absent the side constraint. (21)
Although both Dworkin and Nozick focused on rights, the idea of second-order trumps or side constraints is even more broadly applicable. Most importantly here, it is applicable to a vast swath of constitutional law. Although constitutions constitute governments and their component parts (22) and empower those component parts to take actions of various kinds, (23) constitutions also typically play an important role, by establishing rights and otherwise, in limiting governments in exactly the way that Dworkin and Nozick have in mind. To put it differently, constitutions impose second-order constraints on even sound first-order policies or other governmental decisions. Constitutions thus not only attempt to keep racists, sexists, power-grabbers, dissent-suppressors, rogue police officers, bribe-takers, and other similarly undesirable officials from taking undesirable actions or adopting undesirable policies. They also, as previewed above, (24) constrain wise, well-meaning, and astute governmental officials from pursuing in good faith policies that can genuinely be expected to have advantageous outcomes for the population at large.
The virtues of this side-constraint aspect of constitutional constraint may not always be obvious, but constitutions disable wise and well-intentioned officials and institutions from doing what seem to be good things for multiple reasons. Sometimes, perhaps most often, constitutions do so in the service of individual rights--individual rights against the majority and not for the benefit of the majority. (25) And at other times they do so because the stability provided by constitutions may preclude actions and policies that look advantageous in the short-term but may have longer-term negative consequences, (26) or because keeping a constitution functioning is itself often a valuable long-term consequence that demands the invalidation of actions that seem to be right for the immediate circumstances but which nevertheless violate that constitution. (27)
Examples of the phenomenon just described are rampant. When courts enforce the so-called dormant Commerce Clause, for example, they say to the states that even those policies designed in good faith to assist a state's residents and industries--and which may often actually assist those residents and industries--are nonetheless unconstitutional because of the larger constitutional interest in a single national market. (28) When bipartisan congressional measures aimed at adapting a 1787 document to the realities of modern legislative life are invalidated, the Supreme Court treats compliance with the formal requirements for legislative validity as a side constraint on what would otherwise seem to be a wise and efficient legislative approach. (29) And when the Supreme Court holds that some seemingly valuable policy measure is beyond Congress's power under the Commerce Clause, (30) it again imposes second-order constraints of power limitations (or of jurisdiction, in the nontechnical sense) on what might appear to be wise and even needed first-order policies.
The foregoing examples each involved federalism or separation of powers constraints, but more...